250 F.3d 1308 (11th Cir.

2001)

Ernest Randy JUDD, Petitioner-Appellant,

v.
Michael W. HALEY, Commissioner, Alabama Department of
Corrections, Arnold Holt, Warden, Bullock County
Correctional Facility, Bill Pryor, Respondents-Appellees.
No. 00-12786.

United States Court of Appeals,

Eleventh Circuit.
May 9, 2001.
May 21, 2001.

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Northern District of
Alabama.(No. 97-02735-CV-S-NE), C. Lynwood Smith, Jr., Judge.
Before WILSON and COX, Circuit Judges, and RYSKAMP* , District
Judge.
WILSON, Circuit Judge:
Ernest Randy Judd, an Alabama prisoner, appeals from the district court's
dismissal of his petition for a writ of habeas corpus, filed pursuant to 28
U.S.C. 2254. Judd contends that the district court erred in finding that
the doctrine of procedural default precluded federal review of his
underlying constitutional claim-namely, that his right to a public trial
under the Sixth Amendment of the United States Constitution was denied
by the Alabama trial court. After reviewing the briefs and the record, and
after the benefit of hearing oral argument, we conclude that the doctrine of
procedural default is inapplicable in this case. The Alabama Supreme
Court's resolution of Judd's appeal did not rest upon an adequate state
procedural ground, and thus does not operate as a bar to our review of the
merits of Judd's federal constitutional claim. Furthermore, Judd's
constitutional argument is meritorious, and entitles him to habeas relief.
We therefore reverse the decision of the district court, and remand the
case with instructions directing the district court to grant Judd's habeas

petition.
BACKGROUND
Judd was indicted by an Etowah County, Alabama, Grand Jury in June of
1993 on multiple counts of rape, sodomy, and sexual abuse. Judd's
adopted daughter, J.D.J., who was 14 at the time of the indictment, was
the alleged victim of these crimes.1

On the morning Judd's trial was to begin, in June of 1994, the prosecutor and
Judd's defense attorneys met with the trial judge in chambers to resolve various
evidentiary matters. A court reporter was present to preserve a record of the
meeting. When all of the evidentiary issues on the agenda were resolved, the
judge asked if the parties were ready to proceed to the courtroom and begin the
trial. After receiving an affirmative response, the judge and the parties began to
move towards the door.

The court reporter was apparently the first person to leave after the conclusion
of the pre-trial meeting, and was thus not available to record any of the
subsequent conversations that took place in chambers. What we can glean from
the recollections of the parties involved (as manifested at an evidentiary
hearing held before a federal magistrate judge) is something along the lines of
the following: the prosecutor turned to the judge before they reached the
courtroom door, and indicated that he wanted the courtroom closed to all
spectators during J.D.J's testimony. While the prosecutor could not recall the
exact words he used, he explained to the judge that the reasons that he sought
the closure related to the graphic nature of J.D.J's testimony, her young age, and
the fact that she feared testifying in a public forum.

At this point, counsel for the defendant apparently voiced an objection to the
prosecutor's proposal. Despite the objection, the judge indicated that he was
inclined to order the courtroom cleared during J.D.J's testimony. The parties
then proceeded into the courtroom to prepare for opening statements.

Following opening statements, the court made the following ruling on the
record:

Okay, ladies and gentlemen, upon motion of the State of Alabama, which I
have granted, the courtroom will be cleared during the testimony of the minor
child. Y'all may leave now.

After the courtroom was cleared, Judd's attorney issued a lengthy objection,
saying in part:

Judge, we object to my client's constitutional rights being violated. He's

entitled, under the U.S. and Alabama Constitutions, to a free and open
courtroom in this case. The Court has closed the courtroom and we believe my
client's rights have been violated in that aspect.

The Court responded, "Due to the nature of the case and I don't see any
prejudice to the defendant, at this time I will deny your motion." The trial
record does not indicate when, if ever, spectators were permitted to return to the
courtroom, though both the prosecutor and the judge testified at the federal
evidentiary hearing that the courtroom was reopened following J.D.J's
testimony.

The jury found Judd guilty of two counts of sodomy in the first degree and
three counts of sexual abuse in the first degree. The court sentenced Judd to two
concurrent thirty-year terms on the sodomy convictions, and three concurrent
five-year terms on the convictions for sexual abuse.

10

Judd's motion for a new trial was denied, and he appealed his convictions to the
Alabama Court of Criminal Appeals. One of the arguments Judd advanced on
appeal was that the trial court had violated his rights to a public trial under both
the Alabama and the United States Constitutions. The Alabama Court of
Criminal Appeals affirmed Judd's convictions in an unpublished memorandum,
and Judd timely filed a petition for a writ of certiorari with the Alabama
Supreme Court.

11

The Alabama Supreme Court agreed to consider Judd's claim that his right to a
public trial was violated, and issued an opinion on the matter in April of 1997.
See Ex Parte Judd, 694 So.2d 1294 (Ala.1997). The opinion began with an
evaluation of relevant federal and state precedent on the scope of the right to a
public trial, and sought to develop a coherent set of principles that lower courts
and litigants could use as guidance when confronted with the issue. The court
announced as a matter of law that there was no conflict between state and
federal authorities on the scope and nature of that right. In fact, the court
formally adopted the test the U.S. Supreme Court articulated in Waller v.
Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), as a means of
determining when a defendant's right to a public trial has been violated under
the Alabama Constitution in the event of a total closure of a courtroom. See Ex
Parte Judd, 694 So.2d at 1297 ("[W]e adopt the Waller v. Georgia test for

determining when a courtroom can be closed ... without violating a defendant's

constitutional right to a public trial."). However, the court never reached the
merits of Judd's appeal. The court resolved Judd's constitutional claim on a
procedural ground, as explained in the final paragraph of the court's opinion:
12

Judd failed to preserve for the record the proceedings on the motion to close the
courtroom, the considerations that led to the closure of the courtroom, who was
cleared from the courtroom, or whether the courtroom remained closed after
the victims testimony. The burden is on the appellant to bring the record before
an appellate court. Montgomery v. State, 504 So.2d 370, 372
(Ala.Crim.App.1987). Because Judd failed to have the relevant facts and
proceedings included in the record, we cannot consider whether Judd's
constitutional rights were violated when the courtroom was closed in his case.

13

Id.

14

In August of 1997, Judd filed the instant petition for a writ of habeas corpus in
the U.S. District Court for the Northern District of Alabama. In it, Judd
repeated his assertion that the Alabama trial court violated his Sixth
Amendment right to a public trial.

15

Judd's petition was initially assigned to a magistrate judge, who held an

evidentiary hearing on the matter and issued a Report and Recommendation.
The magistrate judge found that the doctrine of procedural default was
inapplicable to Judd's case. Thus, the magistrate judge was able to reach the
merits of Judd's claim, and found that Judd's Sixth Amendment right to a public
trial had been violated. The magistrate judge therefore concluded that the
district court should grant Judd's habeas petition.

16

The district court, in a memorandum opinion, sustained the respondents'

objections to the Report and Recommendation. The court found that the
doctrine of procedural default precluded federal review of the merits of Judd's
claim, and dismissed Judd's habeas petition. In June of 2000, the district court
granted Judd a certificate of appealability, and Judd subsequently filed the
instant appeal.

DISCUSSION
I.
17

The central issue in this appeal is whether a particular claim is subject to the

doctrine of procedural default; this is a mixed question of fact and law, which
we review de novo.2 See Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir.1999).
18

A state prisoner seeking federal habeas relief cannot raise a federal

constitutional claim in federal court unless he first properly raised the issue in
the state courts. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53
L.Ed.2d 594 (1977). The doctrine of procedural default was developed as a
means of ensuring that federal habeas petitioners first seek relief in accordance
with established state procedures. See Presnell v. Kemp, 835 F.2d 1567, 157879 (11th Cir.1988). A state court's rejection of a petitioner's constitutional claim
on state procedural grounds will generally preclude any subsequent federal
habeas review of that claim. See Harmon v. Barton, 894 F.2d 1268, 1270 (11th
Cir.1990). However, a state court's rejection of a federal constitutional claim on
procedural grounds will only preclude federal review if the state procedural
ruling rests upon "independent and adequate" state ground. See Coleman v.
Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991);
Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).

19

In Card v. Dugger, 911 F.2d 1494 (11th Cir.1990), we established a three-part

test to enable us to determine when a state court's procedural ruling constitutes
an independent and adequate state rule of decision. First, the last state court
rendering a judgment in the case must clearly and expressly state that it is
relying on state procedural rules to resolve the federal claim without reaching
the merits of that claim. See id. at 1516. Secondly, the state court's decision
must rest solidly on state law grounds, and may not be "intertwined with an
interpretation of federal law." Id. Finally, the state procedural rule must be
adequate; i.e., it must not be applied in an arbitrary or unprecedented fashion.
The state court's procedural rule cannot be "manifestly unfair" in its treatment
of the petitioner's federal constitutional claim to be considered adequate for the
purposes of the procedural default doctrine. Id. at 1517.

20

Applying this three pronged-test to the instant case, we can assume, without
deciding, that the Alabama Supreme Court's decision meets the first two prongs
of the Card test; i.e. that the court explicitly stated that it was relying on a
procedural bar to resolve the case, and that its application of the procedural bar
was not "intertwined with" interpretations of federal law. We need not address
either of these issues, because the Alabama Supreme Court's opinion in Ex
Parte Judd cannot meet the third prong of the Card test. This prong requires the
state procedural rule to be adequate, meaning that the application of the rule
must not be manifestly unfair in its treatment of Judd's federal claims. We find
that the Alabama Supreme Court's application of its procedural rule in this case
was fundamentally unfair to Judd, and we must conclude that it was an

inadequate basis for the court's refusal to consider the merits of Judd's appeal.
To understand why the procedural rule employed by the court in Ex Parte Judd
was not adequate to preclude federal habeas review of Judd's underlying
constitutional claim, we will first need to examine the relevant federal
precedent on the right to a public trial afforded criminal defendants by the Sixth
Amendment.
II.
21

The Sixth Amendment to the United States Constitution states (in part): "In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial...." Perhaps the most definitive statement the United States Supreme Court
has issued on the scope of one's right to a public trial came in the 1984 case of
Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31. In Waller, the
Court considered the case of a group of defendants that had been convicted in
Georgia state court of racketeering and gambling offenses. Much of the
evidence against the defendants came from wiretap recordings that the
defendants alleged were obtained without probable cause. The defendants thus
moved to suppress the wiretap evidence. The state argued that the suppression
hearing should be closed to spectators, as some of the recordings could violate
the privacy rights of uncharged persons whose voices could be heard on the
tapes. The trial court granted the state's motion, and closed the hearing (which
lasted seven days) to the public. The defendants were eventually convicted, and
after the Georgia Supreme Court affirmed those convictions, the United States
Supreme Court granted certiorari to consider whether the closure of the
suppression hearing violated the defendants' Sixth Amendment right to a public
trial.

22

Justice Powell, writing for the Court, found that the closure of the suppression
hearing did indeed violate the defendants' Sixth Amendment rights. In reaching
this conclusion, the Court noted the possibility that other rights or interests may
sometimes override a defendant's interest in a public trial. However, the Court
pointed out that "[s]uch circumstances will be rare ... and the balance of
interests must be struck with special care." Waller, 467 U.S. at 45, 104 S.Ct.
2210. The Court then articulated the steps that must be taken if a courtroom is
to be completely cleared of spectators:

23

[T]he party seeking to close the hearing must advance an overriding interest
that is likely to be prejudiced, the closure must be no broader than necessary to
protect that interest, the trial court must consider reasonable alternatives to
closing the proceeding, and it must make findings adequate to support the
closure.

24

Id. at 48, 104 S.Ct. 2210.

25

Two more notes about Waller are relevant for our purposes. First, a violation of
one's right to a public trial is structural error. See id. at 49, 104 S.Ct. 2210;
Johnson v. United States, 520 U.S. 461, 469, 117 S.Ct. 1544, 137 L.Ed.2d 718
(1997) (citing Waller as one of the "limited class" of cases where structural
error has been found). Structural error is a "defect affecting the framework
within which the trial proceeds, rather than simply an error in the trial process
itself." Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d
302 (1991). As such, structural errors are not subject to harmless error analysis.
See id. at 309, 111 S.Ct. 1246. Therefore, once a petitioner demonstrates a
violation of his Sixth Amendment right to a public trial, he need not show that
the violation prejudiced him in any way. The mere demonstration that his right
to a public trial was violated entitles a petitioner to relief.

26

Second, we have recognized a distinction between total closures of proceedings,

as in Waller, and situations where the courtroom is only partially closed to
spectators. See Douglas v. Wainwright, 739 F.2d 531, 532 (11th Cir.1984).
When access to the courtroom is retained by some spectators (such as
representatives of the press or the defendant's family members), we have found
that the impact of the closure is not as great, and not as deserving of such a
rigorous level of constitutional scrutiny. See id. at 533; Aaron v. Capps, 507
F.2d 685, 688 (5th Cir.1975).3 Both partial and total closures burden the
defendant's constitutional rights, and before either is undertaken, a court must
"hold a hearing and articulate specific findings." See Douglas, 739 F.2d at 532.
However, in the event of a partial closure, a court need merely find a
"substantial" reason for the partial closure, and need not satisfy the elements of
the more rigorous Waller test. See id. at 533; United States v. Brazel, 102 F.3d
1120, 1155 (11th Cir.1997).

27

We have relatively little precedent on the right to a public trial generally, and
have not specifically addressed the question of how to analyze the total clearing
of a courtroom during a portion of a criminal trial. However, the precedent that
we do have defines "partial closures" as situations in which the public retains
some (though not complete) access to a particular proceeding. See Douglas, 739
F.2d at 532 ("The most important distinguishing factor is that Waller involved a
total closure ... the press and the public having been specifically excluded,
whereas Douglas entailed only a partial closure, as the press and family
members of the defendant, witness, and decedent were all allowed to remain").
Nowhere does our precedent suggest that the total closure of a courtroom for a
temporary period can be considered a partial closure, and analyzed as such.

28

Furthermore, our prior cases have articulated the values that the Constitution's
public trial guarantee seeks to protect, which include permitting the public to
see that a defendant is dealt with fairly, ensuring that trial participants perform
their duties conscientiously, and discouraging perjury. See id. at 531; Brazel,
102 F.3d at 1155. These values are only moderately burdened when the
courtroom is partially closed to the public, as certain spectators remain and are
able to subject the proceedings to some degree of public scrutiny. However, a
total closure of the courtroom, even for a temporary period, eliminates for a
time the valuable role the presence of spectators can have on the performance
of witnesses and court officials, and can create a public perception that the
defendant is not being treated justly.

29

Given these facts, we think that the only conclusion that can fairly be drawn
from our precedent is that a total closure of a criminal trial during the
presentation of evidence even for a temporary period, such as during the
testimony of a particular witness, must be analyzed as a "total closure," and
subjected to the four-pronged test established in Waller. Notably, our sister
circuits have also applied the stringent Waller test to circumstances in which
the courtroom was completely cleared during the testimony of particular
witnesses. See English v. Artuz, 164 F.3d 105, 108 (2d Cir.1998); Bell v.
Jarvis, 236 F.3d 149, 165-66 (4th Cir.2000).
III.

30

Given the status of federal precedent on the Sixth Amendment's right to a

public trial (as outlined above), we can now examine the adequacy of the
Alabama court's application of its procedural rule in a contextually appropriate
manner.

31

First of all, it is important to note that we do not challenge the legitimacy of the
well-established Alabama procedural rule placing the burden upon the
appellant to furnish reviewing courts with an adequate record on appeal.
Alabama has long required appellants to ensure that the record on appeal
supports their claims of error; an appellant's failure to furnish an appeals court
with a record demonstrating such error dooms the appellant's case. See
Montgomery v. State, 504 So.2d 370, 372 (Ala.Crim.App.1987); Harris v.
State, 420 So.2d 812, 816 (Ala.Crim.App.1982); Miller v. State, 405 So.2d 41,
47 (Ala.Crim.App.1981). There can be no doubt that the procedural rule itself is
firmly entrenched in Alabama law. Our problem is with the application of the
procedural rule in this matter.

32

The root of our concern is that the Alabama court's determination that the
record was insufficient to review a Sixth Amendment claim is itself based on a
misreading of federal law concerning the right to a public trial. An examination
of the supposed deficiencies in the record illustrates the problematic nature of
the Alabama Supreme Court's opinion.

33

The Alabama Supreme Court found that Judd failed to include in the record "
who was cleared from the courtroom, or whether the courtroom remained
closed after the victim's testimony." Ex Parte Judd, 694 So.2d at 1297.
Respondent contends that these are substantial omissions from the record. The
Eleventh Circuit has found that partial closures of courtrooms or proceedings do
not implicate the same fairness concerns as total closures, and are evaluated by
reviewing courts in a less demanding way. See Douglas, 739 F.2d at 532-33.
Absent evidence in the record as to whether the closure was partial or total, it is
impossible for a reviewing court to properly evaluate whether the closure
violated the defendant's Sixth Amendment rights.

34

The problem with this defense of the Alabama Supreme Court opinion is that a
fair reading of the record reveals that it is not at all deficient as to the scope of
the closure. The trial judge was unequivocal in his request that the courtroom
be cleared prior to J.D.J's testimony, and the record reflects the clarity of his
language. He mentioned that the courtroom was to be "cleared during the
testimony of the minor child," and then stated, "[You all] may leave now."
Neither of these remarks, by their terms, except any spectators. The court
reporter made a notation in the record stating that "the courtroom was cleared"
following the judge's ruling. There is no ambiguity in the record on this point.
The absence of anything in the record suggesting that certain spectators were
permitted to remain in the courtroom indicates that the clearing of the court was
complete. The only conclusion that can fairly be drawn from the record the
Alabama court had is that the courtroom was completely cleared of spectators
prior to the start of J.D.J's testimony.

35

There is nothing in the record indicating the duration of the closure, though the
Alabama Supreme Court acknowledges that the closure continued at least
through the testimony of J.D.J..4 However, this omission in the record in no
way precludes review of the merits of the claim. Even if spectators were
permitted to return immediately following J.D.J.'s testimony, the fact remains
that the record reflects a total closure of the courtroom during the testimony of
a critical witness. Given the absence of any public access to the courtroom
during this key portion of Judd's trial, the closure cannot appropriately be
rationalized as "partial" under our precedent.

36

A fair look at the record the Alabama Supreme Court had before it in Ex Parte
Judd thus indicates that the courtroom was completely cleared of spectators
during J.D.J.'s testimony. The court was therefore obliged to apply the
stringent, four-part test laid out in Waller to the events surrounding the closure
of the courtroom in Judd's case. However, the court found other deficiencies in
the record that apparently precluded it from reviewing Judd's claim under the
standards articulated in Waller--namely, the absence of evidence concerning "
the proceedings on the motion to close the courtroom [and] the considerations
that led to the closure of the courtroom...." See Ex Parte Judd, 694 So.2d at
1297.

37

Waller places the burden upon the party seeking closure to demonstrate two
things: (1) an overriding interest that is likely to be prejudiced by an open
courtroom, and (2) that the closure sought is no broader than is necessary to
protect that interest. See Waller, 467 U.S. at 48, 104 S.Ct. 2210. The trial court
then must: (1) consider reasonable alternatives to a closure, and (2) make
findings adequate to support a closure of the courtroom. See id. The holding of
Waller thus requires the court and the party seeking a total closure to take
affirmative steps ensuring that closing the courtroom is the least restrictive way
to protect another valuable interest, an interest so valuable that it supersedes the
rights of the defendant and the public to open proceedings in matters of public
record. The absence of any evidence that these affirmative steps were taken, on
the face of the record, cuts in favor of the party objecting to closure of the
courtroom, not in favor of those who sought the closure.

38

Respondent defends the Alabama Supreme Court's view that the record was
inadequate for it to appropriately apply Waller in the following way: the
Alabama Supreme Court was not privy to any information about what took
place in chambers prior to the beginning of the trial-all they knew was that
certain conversations relating to closing the courtroom had taken place off the
record. Presumably, the drafters of the Alabama opinion assumed it possible
that discussions and findings had taken place off the record that justified
closure under Waller. Therefore, it was up to Judd to supplement the record to
reflect what considerations held sway in the off the record discussions about
the issue.

39

This argument is implausible given the holding and purposes of Waller. One of
the precedents Waller relied upon was Press-Enterprise Co. v. Superior Court of
California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). The PressEnterprise court established the fundamental balancing test with respect to the
closure of courtrooms in language quoted in and relied upon by Waller:

40

The presumption of openness may be overcome only by an overriding interest

based on findings that closure is essential to preserve higher values and is
narrowly tailored to serve that interest. The interest is to be articulated along
with findings specific enough that a reviewing court can determine whether the
closure order was properly entered.

41

Id. at 510, 104 S.Ct. 819; (quoted inWaller, 467 U.S. at 45, 104 S.Ct. 2210).
The import of the text quoted above is that a court's determination that total
closure of the courtroom is the least restrictive way to protect an overriding
interest must be placed on the record if it is to be acceptable. There is nothing
that could possibly have happened in non-transcribed, off the record
proceedings that could satisfy Waller's requirement that the trial court articulate
on-the-record findings specific enough to enable a reviewing court to evaluate
the closure order.

42

Furthermore, the notion that a permissibleWaller hearing could be held off the
record contradicts not only the text of Waller, but also any contextually
reasonable reading of theWaller opinion. The purposes of the Constitution's
public trial guarantee, a guarantee that Waller seeks to protect, include enabling
the public to see that the accused is being treated fairly, and that the judge and
prosecutor are carrying out their duties responsibly. See Waller, 467 U.S. at 46.
These values are obviously not promoted when a court holds a non-transcribed,
off the record proceeding, closed to the public, that results in a decision to
exclude all spectators from portions of a criminal trial.

43

Ultimately, it is clear that the Alabama Supreme Court had an adequate record
before it to properly evaluate Judd's Sixth Amendment claim. The court
misconstrued federal law in finding the record insufficient for a consideration
of Judd's appeal on the merits. The Alabama Supreme Court's determination
that the record was insufficient to evaluate Judd's constitutional claim was
manifestly unfair in its treatment of Judd's federal arguments, and is thus not
adequate for the purposes of the procedural default doctrine. See Upshaw v.
Singletary, 70 F.3d 576, 579-80 (11th Cir.1995) (finding state court's denial of
post-conviction relief on procedural grounds "inadequate" due to manifest
unfairness); Spencer v. Kemp, 781 F.2d 1458, 1470-71 (11th Cir.1986)
(manifestly unfair application of state procedural rules not adequate to preclude
federal review of petitioner's constitutional claim).
IV.

44

In light of the above, it is clear that the district court erred when it found that

the doctrine of procedural default precluded federal review of Judd's Sixth

Amendment claim. Ordinarily, we would remand the case to the district court
for consideration of that claim on the merits. See, e.g., Meagher v. Dugger, 861
F.2d 1242, 1247 (11th Cir.1988) (remanding case to district court for
consideration of the merits of the underlying claim after determining that claim
was not subject to the doctrine of procedural default). In this case, however, the
record is more than adequate for us to review the constitutional claim without
remand. The magistrate judge held a thorough evidentiary hearing on the
events surrounding Judd's trial; the transcript of that hearing, coupled with the
transcript of Judd's trial, provides us with sufficient information to consider the
merits of Judd's Sixth Amendment claim. Remand for a consideration of the
claim by the district court would amount to a waste of judicial resources in the
face of such an ample record. See, e.g., Perkins v. Matthews, 400 U.S. 379,
386-87, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971) ("in the interest of judicial
economy, we shall not remand to the district court.... The record is adequate to
enable us to decide [the issue on appeal], and we shall, therefore, decide this
question"); Wheeler v. City of Pleasant Grove, 896 F.2d 1347, 1351 (11th
Cir.1990) (finding remand unnecessary after district court had already held
extensive hearings on the relevant issues on appeal).
45

The trial transcript, along with the testimony the principal parties offered at the
habeas evidentiary hearing, reflects the fact that the courtroom was completely
closed to spectators during J.D.J's testimony. No spectators were permitted to
view a critical portion of the state's case against Judd; we therefore will view
this matter as a total closure, and will apply the test articulated in Waller to the
instant case.

46

We need only consider the fourth prong of Waller, which requires that a court
make findings adequate to support its decision to close the courtroom. In this
case, we have no findings on the record that support the drastic remedy of a
total closure of the courtroom during J.D.J's testimony. The court did not take
any testimony concerning J.D.J's age, psychological maturity, or particular fears
or concerns about testifying in open court; nor did the court explain why a total
closure, rather than a partial closure, was necessary in this case. The trial judge
admitted at the evidentiary hearing that he was not aware of Waller at the time
he made his ruling, and this is reflected in the fact that he made no effort to
justify his decision to close the courtroom with any relevant findings on the
record. We have no findings on the record specific enough for us to determine
that the closure order was properly entered; as such, Judd has shown that the
trial court did not satisfy the fourth prong of the Waller test. We need not
consider whether the other elements of Waller were met in light of this fact.

47

As a violation of the right to a public trial is structural error, Judd need not
show that he was prejudiced by the closing of the courtroom. All he must
demonstrate is that the trial court did not comply with the procedures outlined
in Waller prior to its decision to completely remove spectators from the
courtroom. Judd has successfully demonstrated that the closure of the
courtroom in his case was not conducted in conformity with the standards
articulated in Waller; therefore, he is entitled to habeas relief on his Sixth
Amendment claim.

CONCLUSION
48

When considering Judd's direct appeal of his 1994 state court convictions, the
Alabama Supreme Court applied a state procedural rule in a manner that
prevented them from reaching the merits of Judd's federal constitutional claim.
However, the application of the procedural rule in this case was not an adequate
basis for the court's refusal to consider Judd's federal claim, and therefore does
not preclude federal review of the merits of Judd's constitutional argument.
Judd's federal constitutional claim, which asserts that the Alabama trial court
violated his Sixth Amendment right to a public trial, is meritorious. Therefore,
we reverse the decision of the district court that found Judd's Sixth Amendment
claim procedurally defaulted, and remand the case to that court, with
instructions to grant Judd's petition for a writ of habeas corpus.

49

REVERSED and REMANDED.

NOTES:
*

Honorable Kenneth L. Ryskamp, U.S. District Judge for the Southern District
of Florida, sitting by designation.

Due to the sensitive nature of the underlying events in this case, we will refer to
the minor witness by her initials only.

We review a district court's findings of fact in a habeas case for clear error. See
Byrd v. Hasty, 142 F.3d 1395, 1396 (11th Cir.1998)

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), we

adopted as precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.

The court's note that the record did not reflect "whether the courtroom

remained cleared after the victim's testimony." is an implicit acknowledgement

that the court was cleared for the duration of her testimony.